remanded EB-2 Case: Unknown

identifying data deleted to
pl'8v~nt clearly unwarranted
mV8S10Dofpersonalprivacy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
PUBLIC COpy
FILE: LIN 06 267 52797 Office: NEBRASKA SERVICE CENTER Date: AUG 28 2007
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration
and Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
C:':':~'~-'-~~---
!-tLRobert P. Wiemann, Chief
) Administrative Appeals Office
www.uscis.gov
LIN 06 267 52797
Page 2
DISCUSSION: The Director , Nebraska Service Center, denied the immigrant visa petition. The matter is
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as untimely
filed. The AAO will return the matter to the director for consideration as a motion to reconsider.
In order to properly file an appeal, the regulation at 8 C.F.R. § 103.3(a)(2)(i) provides that the affected party
must file the complete appeal within 30 days of after service of the unfavorable decision. If the decision was
mailed, the appeal must be filed within 33 days. See 8 C.F.R. § 103.5a(b). The date of filing is not the date of
mailing, but the date of actual receipt. See 8 C.F.R. § 103 .2(a)(7)(i).
The record indicates that the director issued the decision on November 30, 2006. It is noted that the director
properly gave notice to the petitioner that it had 33 days to file the appeal. Although counsel dated the appeal
December 28,2006, it was postmarked December 29,2006 and received by the director on January 3, 2007,
34 days after the decision was issued. Accordingly, the appeal was untimely filed. The director erroneously
annotated the appeal as timely and forwarded the matter to the AAO.
Neither the Act nor the pertinent regulations grant the AAO authority to extend the 33-day time limit for
filing an appeal. As the appeal was untimely filed, the appeal must be rejected. Nevertheless, the regulation
at 8 C.F.R. § 103.3(a)(2)(v)(B)(2) states that, if an untimely appeal meets the requirements of a motion to
reopen or a motion to reconsider, the appeal must be treated as a motion, and a decision must be made on the
merits of the case.
A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent
decisions to establish that the decision was based on an incorrect application of law or Service policy. A
motion to reconsider a decision on an application or petition must, when filed, also establish that the decision
was incorrect based on the evidence of record at the time of the initial decision . 8 C.F.R. § 103.5(a)(3). A
motion that does not meet applicable requirements shall be dismissed. 8 C.F .R. § I03.5(a)(4).
Here, the untimely appeal meets the requirements of a motion to reconsider. The official having jurisdiction
over a motion is the official who made the last decision in the proceeding , in this case the service center
director. See 8 C.F.R. § l03.5(a)(l)(ii). Therefore, the director must consider the untimely appeal as a
motion to reconsider and render a new decision accordingly.
ORDER: The appeal is rejected. The matter is returned to the director for consideration as a motion to
reconsider.